87 S.W. 12 (Mo.App. 1905), Lee v. St. Louis, Memphis & Southeastern Railroad Co.
|Citation:||87 S.W. 12, 112 Mo.App. 372|
|Opinion Judge:||NORTONI, J. (after stating the facts.)|
|Party Name:||LEE, Respondent, v. ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant|
|Attorney:||L. F. Parker and Moses Whybark for appellant. Edw. D. Hays for respondent.|
|Case Date:||May 02, 1905|
|Court:||Court of Appeals of Missouri|
[Copyrighted Material Omitted]
Appeal from Cape Girardeau Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED.
The plaintiff, a section hand in the employ of the defendant railroad on its section in Cape Girardeau county, was injured October 26, 1903, by the derailment of a handcar on which he and two other laborers and Corbett, the section foreman, were riding in their line of duty. His testimony in substance was that he had been employed on different railroads as a section hand for twelve or thirteen years and on defendant's section for some months; that on the day of the injury Mr. White, the roadmaster, was with the section gang and upon his desiring to leave, a couple of the hands came to plaintiff with an order from the foreman to put on the handcar, which they did, and pumped the car up to where the foreman and roadmaster were, whereupon plaintiff asked the foreman if he wanted him to go along and the foreman replied: "Get on and come with us," which he did, in company with the foreman and the two laborers, Hudson and Lamb. They ran the car up the road for some distance, possibly two or three miles, when the roadmaster signified his intention of getting off and walking from there. Upon leaving the car, the roadmaster directed the foreman to go back to his men. They then started to return to their work. Corbett, the foreman, and plaintiff were behind the front handle facing the direction the car was moving; Lamb and Hudson were aft of the rear handle facing the same direction. All were engaged in pumping the car. The car was being propelled carefully at a rate of speed about equal to twice as fast a man could walk. After having progressed thus for a mile or more, the handcar suddenly derailed and the plaintiff was precipitated head foremost over the handle at which he was working and thrown with the side of his head against the track rail, thereby bruising the side of his head, injuring his arm, shoulder and leg and inflicting severe and permanent injury to his ear, from the effects of which his hearing is greatly impaired. The handcar was of the usual pattern and could be propelled with the gearing either in the front or in the rear. It was the custom to propel this one with the gearing foremost. The car was propelled with a lever and two handle bars. The two men stood, one at either end of each handle, and by means of pumping up and down, the gearing of the car was caused to rotate. An upright, called the pitman, connected with the lever bar which lever bar was on a pivot and in which the handles were. The pitman was by means of what was called the gooseneck, connected with a large or bull wheel in which were cogs. By means of the pumping up and down of the handles, the pitman connected with the lever bar which was, by means of the gooseneck, connected with the bull wheel, caused the bull wheel to revolve, and the cogs therein fitted into other cogs on the small wheel or pinion; the pinion being stationary near the center of and on the foremost axle of the car, would cause said axle to revolve with each revolution of the pinion. The two carwheels on said axle were, or should have been stationary thereon. They, of course, would revolve with the axle and the car was thus propelled either forward or backward as desired. The subjoined plate No. 1 will show a side view of the handcar, the bull wheel and pinion with the cogs therein, the gooseneck, pitman and side view of the lever bar, also the footbrake on the side of the car. Plate No. 2 will show a top view of said car, that is, the lever bar in which the handles at either end of the car were fastened therein crosswise of the car. The cogs of the bull wheel and pinion were defective in that they were tight and rigid in their bearing and would bind one upon the other to some extent at times when the car was in motion. The car had been in charge of the section gang about a week, had recently come to them from the shops. Plaintiff knew that its gearing was defective in that it would bind and pull heavy at times. He also knew that the left front wheel of the handcar was loose on the axle when it should have been affixed stationary thereon and that it would play back and forth lengthwise on the axle to some extent, but not enough to permit the wheel to get off the rail. Also that the flanges on some of the wheels were broken and not in good order and says that he had been a little afraid of the car on account of the looseness of the left fore wheel and had considered the car somewhat dangerous from that defect if run at a rapid rate of speed but did not consider it dangerous if run at the rate of speed it was being propelled on the occasion in question. The injuries did not result however from the defective left fore wheel nor from the defective flanges on the wheels but resulted from the defective gearing or defective cogs on the bull wheel and pinion. Plaintiff said of the defect which caused the injury: "I could not say that I considered that anything dangerous for the reason I had never seen an accident occur from a thing like that. I really had never seen a car put down as tight as that was. I could not say that I considered that a dangerous defect." While the car was moving along as above indicated, the cogs in the bull wheel and pinion suddenly and without warning became locked at a time when the rear handle bar was down and the foremost handle bar was up; therefore, as the men at the rear handle bar, with the usual force, lifted on their handle, instead of the bull wheel and pinion revolving as they should have done and propelled the car forward, they being locked, the front end of the car was raised and veered off of the track, causing the injury. Plaintiff said: "The first sensation I had was--I was pulling on the right side; the car swung to the right, then veered back to the left, and I started intending, that is, my thoughts went that way, I don't know whether I made any effort physically or not, to get on the brake. I was riding on the brake side of the car. My thoughts were that I would get on the brake and that would turn the car back straight on the track or check it, but when I found myself I was on the track. I was pitched off the car. I do not remember how far it threw me nor how long I lay there, but that was my thought and immediately I was thrown on the track." The brake was what is usually known as a footbrake and could have been brought into use by plaintiff placing his foot thereon and pressing it down.
[SEE TOP VIEW OF HAND CAR IN ORIGINAL]
[SEE SIDE VIEW OF HAND CAR IN ORIGINAL]
Upon cross-examination plaintiff testified that he had been employed some as a section foreman and was an experienced section man and familiar with handcars; that the car was running at the time of the accident much slower than cars are usually run; that it was being operated with care; that he had seen nothing before the accident from the defective cogs which appeared dangerous to him from that cause if the car was operated at a moderate rate of speed, as it was.
Plaintiff introduced several of his colaborers on the section who testified in the main to the same state of facts above set out, and while a number of the witnesses on the part of plaintiff stated on cross-examination that they had considered the car dangerous, that none of them seemed to consider it dangerous in that the cogs of the bull wheel and pinion which brought about the catastrophe in this case were defective sufficiently to cause a derailment of the car running at the rate of speed shown in the evidence. The evidence disclosed that the car, taken all in all, was old, worn and defective; the flanges were broken on certain wheels; the looseness of the left front wheel and the defective working of the cogs on the bull wheel and pinion, the sum total of all of which the witnesses generally pronounced apparently dangerous for use, but all seemed to agree that the defective gearing was not openly and obviously dangerous. They all agreed also to the fact that the looseness of the left front wheel of the car in no way contributed to this injury and both those who spoke from personal knowledge as well as those who testified as experts, agreed that plaintiff's injuries resulted from the sudden and unexpected locking of the cogs of the two wheels mentioned which was occasioned because of the fact that the meshes or cogs of said wheels did not work together because of the extreme worn out condition of one of said wheels and the newness of the cogs on the other.
The plaintiff's amended petition alleged the negligence as follows: "That the two cogwheels in the gearing of said handcar, commonly called the bull wheels and pinion, were defective in that they were so tight and close and rigid in their rolling and bearing upon each other that they would hitch and bind and interfere and refuse to turn one upon the other; and that when such handcar was being propelled along the track and such wheels would hitch and bind and interfere and refuse to turn one upon the other, the movement of the lever and the pitman on said handcar would lift the front end of the handcar off of the track and thus would cause the said handcar to become derailed.
The answer consisted of a general denial and pleaded separately that the plaintiff had knowledge of the defects of the car and therefore his assumption of the risk in using it and that he was guilty of such contributory negligence as would preclude his recovery.
The replication was a general denial.
The court permitted plaintiff, over the objection and exception of defendant, to introduce one...
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